by Julian Ku, Opinio Juris—
As we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways. Withdrawing from trade agreements could be a major theme of his administration. Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.
I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.
For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments. This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel. Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel. Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.
The Court’s ruling in Zivotofsky is not exactly controversial. But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there. Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State.
It might also violate U.N. Resolution 242 and other UN resolutions. Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise. But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security Council resolutions, if 242 and other resolutions actually prohibited such recognition.
It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts. President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.
Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.